Disclosure Failure By Defendant what do I need to do please

[Helpmeout]

Hi

A court order was made to disclose documents by **** which has now passed.

The defendant has not sent me any disclosure documents,

I've tried to contact the court by telephone but am unable to contact them due to the Christmas break.

At the top of the order that was made it says:

Warning: you must comply with the terms imposed upon you by this order: Otherwise your case is liable to be struck out or some other sanction imposed. If you cannot comply you are expected to make formal application to the court before any deadline imposed upon you expires.

As far as I'm concerned I've served my list of documents to the court and defendant on time.

Just not sure if or what I need to do next if anything at all.

Thanks for your help

[R0b]

Re: Disclosure Failure By Defendant what do I need to do please

Hello

Was this a specific order made by the court to disclose documents or was it a standard type of disclosure such as exchanging witness statements and documents 14 days before trial?

Is the claim allocated to the small claims track or some other track?

Have you got a trial date and if so when is it?

[Helpmeout]

Re: Disclosure Failure By Defendant what do I need to do please

Error

[Amethyst]

Re: Disclosure Failure By Defendant what do I need to do please

So they have failed on the first part - disclosure by list - by 4pm 22nd Dec ?

There may be some leaway with the post being known to be poor in the Christmas period ( although the other party should have taken that into account - did you send yours by recorded/signed post at all ? ) I would (once you can get through to them) inform the court manager at your hearing court that the other party has failed to comply - it should then get passed to the Judge to look at a sanction ( or extension - they may well have applied for extension without informing you ) and issue further directions or strike.

[Helpmeout]

Re: Disclosure Failure By Defendant what do I need to do please

Hi
Yes that's correct the first part by 4pm on the 22nd they failed to get them to me on time.

Mine was both sent for recorded delivery and both arrived before the above time and date.

Many thanks

[Helpmeout]

Re: Disclosure Failure By Defendant what do I need to do please

Morning all thanks again for all your help on this.

I have now received some paperwork from the defendant it was posted signed for 1st class on the 21/12/17.arrived today 28/12/17

The reason it's only just arrived is I would guess is because it has the wrong postcode on it.

It is wrong by one letter at the end of the postcode.

Also pages are not numbered and no completed form N265 is enclosed.

I have again tried calling the court to inform them but are unable to make contact due to the Christmas break.

Thanks

[Amethyst]

Re: Disclosure Failure By Defendant what do I need to do please

It is likely they would be allowed to deem the disclosure list as served on 22nd being first class post and signed for - if the post mark is the 21st then there likely will be no sanctions.

I can't read the first page of your order very well. In your response to them ( requesting inspection ) point out the date received, inform them clearly of your accurate postal code, the failure to number and the lack of N265 ( have they used the same text to confirm searches etc ?- it doesn't have to be the actual form ). If it hasn't caused you an issue ( does inspection have to be by beginning of February ?) then I would proceed as normal and keep records for your later witness statements.

[Helpmeout]

Re: Disclosure Failure By Defendant what do I need to do please

Hi thanks for the quick reply

Inspection by 5 Jan 18.

No text or form stating searches done enclosed

Thanks

[R0b]

Re: Disclosure Failure By Defendant what do I need to do please

Have you tried to contact the defendant about these issues? Part of the overriding objective under the Civil Procedure Rules is for parties to co-operate with one another, so before going to the court about it and making use of the Christmas break, perhaps try and contact the defendant pointing out these problems and give him/her/it an opportunity to remedy it. If they continue to ignore and fails to comply, then you can draw your correspondence to the courts attention that the defendant was aware but chose not to do anything about it plus an excuse to obtain reasonable costs from them at the LiP rate which is £19 per hour - assuming you are doing all of this as a litigant in person.

[Helpmeout]

Re: Disclosure Failure By Defendant what do I need to do please

Hi
No not as yet as I would like to make sure what I am asking for is correct, such as am I supposed to get a copy or or something similar to a completed N265 or is that just for the court.

Also some written witness statements should I get these at this time

Thanks again

[Amethyst]

Re: Disclosure Failure By Defendant what do I need to do please

So far as I can make out the order is for standard disclosure by list and category and the N265 is ordered as well to be served and filed with the court - they may have just sent it to the court, you won't know till the court is back in action ...... you can have a nark at them about it and mention it later if they continue being less than efficient at complying with court orders (as Rob has said ) but really what you should be doing / concentrating on now is your list of documents from their disclosure you wish to inspect ( by copy ) as that has to be requested by 5th Jan, and they have 14 days then to provide copies ( or allow inspection ).

Written Statements are due to be exchanged 16th Feb so no they wouldn't be included in the list.

[Helpmeout]

Re: Disclosure Failure By Defendant what do I need to do please

Hi everyone
I really appreciate your help and support on this.

Right well the paperwork I have is nothing to ask for copies of as I'm satisfied with the very little that's been supplied.

So would I need to contact the court about the N265 or do I just do nothing

Thanks again

[Amethyst]

Re: Disclosure Failure By Defendant what do I need to do please

You should probably write to them and say that you don't require inspection/copies of any of the disclosed documents, just to ensure there's no question of compliance with the order. Also mention the missing N265. I also think I'd mention to the court about the N265, as it is on the order to be filed and served, and if they haven't served it, they may not have filed it either, and thus may stillface a sanction even if a back end costs reduction ( if they went on to win)... so still worth bringing up.

[Helpmeout]

Re: Disclosure Failure By Defendant what do I need to do please

Hi
Thanks again for the very swift help with all of this.

Will do as suggested and thanks again

[Diana M]

You should probably write to them and say that you don't require inspection/copies of any of the disclosed documents, just to ensure there's no question of compliance with the order.

If the OP tells the other side that they (Claimant) do not require inspection of the documents which the Defendant has disclosed then consider whether they have forfeited their right to see them (forever).

Two wrongs don't make a right.

If (and I stress if since no judge has decided that there was late disclosure as yet) the court decides to sanction the Defendant (at this stage in the proceedings) then the Defendant can apply for relief from sanctions based on 'deemed service'.

Maybe they'll be successful in their Application, maybe they won't, but if the OP doesn't comply with Directions to state their intention to inspect or ask for copies of the documentation disclosed to be provided (i.e. the evidence) then have they not also breached 3(b) of the Directions Order or surrendered their right to inspect by the deadline?

The Claimant has the List of Disclosure, whether it was served late or not is up to the court to decide (if formally asked). Nevertheless they have it now.

I would be putting my energy into seeing if anything on the List of Disclosure helps my case if I were the Claimant since Disclosure in the Fast Track requires both parties to disclose everything in their possession even if it harms their case.

I think the OP needs to tread very carefully at this moment in the proceedings so as not to shoot themselves in the foot.

Maybe they need to comply with the Directions Order by 4 pm on 5th January 2018 regardless.

Di

The reason it's only just arrived is I would guess is because it has the wrong postcode on it.

It is wrong by one letter at the end of the postcode.

Does the postcode differ from the one stated on the claim form for you?

Di

Also some written witness statements should I get these at this time

Witness Statements aren't due to be exchanged until 4 pm on 16th February 2018 according to the Order (albeit it's a bit fuzzy to read).

Di

well the paperwork I have is nothing to ask for copies of as I'm satisfied with the very little that's been supplied.

I have no idea what you are claiming or why but sometimes 'very little' may just be dynamite when it comes to arguing your case. It's about quality not quantity.

What is this claim for?

Can you clarify whether both you and the defendant are acting without legal representation. In the Fast Track the loser will have to pay the winner's legal costs unless there are conduct issues.

How much are you claiming?

Would an expert witness help your case?

Di